Marta Alvarez, Appellant,v.NYLL Management Ltd., et al., Respondents.BriefN.Y.February 11, 2015NYSTLA Via Overnight Delivery Mail New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Attention: Clerk of the Court: Andrew W. Klein, Esq. December 6, 2014 Re: Alvarez v. NYLL Management Ltd. and Leoncio Peguero Supreme Court, Bronx County Index: 306222/09 LETTER-BRIEF FOR AMICUS CURIAE Dear Mr. Klein: The New York State Trial Lawyers Association ("NYSTLA") respectfully submits this letter brief of amicus curiae in support of the appeal in this case. This case involves a critically important question for all New York citizens - may a seriously injured automobile accident victim be denied the constitutional right to jury trial merely because he happens to have degenerative changes or arthritis, even when his treating physician affirms the medical findings and opines that the trauma caused his injury and disability or can a court summarily deny that right based on a set of evidentiary and procedural rules that were invented by the courts and never codified by the Legislature when it enacted the No-Fault Law? NYSTLA members are acutely aware of the practical problems resulting from the current state of No-Fault litigation, because we represent seriously injured parties in all New York courts on a daily basis. The No-Fault Law was designed to eliminate the need for court proceedings to secure payment for medical treatment in minor injury cases involving bumps, bruises, and sprains. The plain language of the No-Fault Law demonstrates that it was never intended to eliminate the right to jury trial in serious injury cases. Nevertheless, the lower courts have repeatedly encroached upon the power reserved for the Legislature by enacting various substantive and procedural requirements in automobile cases that have eviscerated the fundamental right to jury trial. These judicial pronouncements have imposed rigid and inflexible requirements upon treating physicians dictating the manner in which they should treat patients and record their findings. No longer are health care providers able to focus on the goal of providing quality patient care. Instead, these physicians must be transformed into litigation consultants to ensure that their patients are able to defeat threshold motions. Neither the No-Fault Law nor this Court's jurisprudence supports such a result. NYSTLA respectfully suggests that this Court articulate two important principles. First, no court in New York possesses the constitutional authority to circumvent the Legislature and enact rules of evidence and procedure governing "serious injury" automobile accident cases. The separation of powers doctrine expressly forbids such judicial legislating. Second, even if the courts were to enact new rules and thus co-opt the legislative function, they should certainly not enact the rules here minted by the Appellate Division, rules that effectively discriminate against persons with pre- existing degenerative changes. Such "rule" runs counter to one of the most basic principles of tort law, namely that the tort law does not discriminate against the susceptible or infirm. McCahill v. New York Transp. Co., 201 NY 221, 223 (1911) (" ... a negligent person is responsible for the direct effects of his acts, even if more serious, in cases of the sick and infirm as well as in those of healthy and robust people, and its application to the present case is not made less certain because the facts are somewhat unusual and the intestate's prior disorder of a discreditable character"). Even more importantly, such rule violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution, a constitutional protection that compels all court to apply the law equally to litigants and bars elevation of the evidence proffered by one party over any other party. DISCUSSION A. The Alvarez Majority Violated The Separation Of Powers Doctrine By Encroaching Upon The Powers Vested In The Legislature And Re-Writing The No-Fault Law And Violated the Equal Protection Clause The Alvarez majority invented a set of rigid and inflexible evidentiary and procedural requirements governing threshold motions in automobile accident cases involving prior injuries and degenerative conditions. Alvarez v NYLL Management Ltd., 120 A.D.3d 1043 (1st Dept. 2014). In so doing, the majority circumvented the separation of powers doctrine, which is designed to preclude one co-equal branch of government from intruding into the province of another co- equal branch. The Alvarez majority violated this sacrosanct principle of jurisprudence by usurping the constitutional authority reserved for the Legislature. The separation of powers doctrine establishes the constitutional framework underlying our entire system of government. As this Court reiterated last year, [t]he concept of the separation of powers is the bedrock of the system of government adopted by this state in establishing three co-ordinate and co-equal branches of government, each charged with performing particular functions. The separation of the three branches is necessary for the preservation of liberty itself, and it is a fundamental principle of the organic law that each department should be free from interference, in the discharge of its peculiar duties, by either of the others. In the Matter of Maron v. Silver, 14 N.Y. 3d 230, 258 (2010). The United States Supreme Court has characterized the separation of powers doctrine as a structural safeguard underlying our constitutional system of government. "In its major features it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 (1995) (emphasis in original). In the seminal case of Montgomery v. Daniels, 38 N.Y. 2d 41 (1975), this Court relied primarily on the separation of powers doctrine to uphold the Legislature's enactment of the No-Fault Law. According to the Court: In this instance, perhaps more than in most, in the light of the exhaustive and vigorous public discussion of the no-fault insurance in this State and elsewhere and the extended legislative consideration which proceeded adoption of article 18 [Comprehensive Automobile Insurance Reparations Act], it would be a demonstration of judicial arrogation and highly inept and inapt to express any opinion as to the factual predicate for this legislation, its philosophical justification or the ultimate wisdom of its enactment. It is not our office to rejoice or to lament. A fair regard for the basic policy of separation of powers dictates judicial respect for the proper role of the legislative branch, and pride in the uniquely and essentially neutral role of the judicial branch. That judicial role is both a privilege and a limitation. Id. at 53. The exact same rationale compels reversal of the Alvarez majority opinion. As noted in Montgomery, the separation of powers doctrine and the related principle of judicial restraint "takes on added substance where the Legislature has engaged in extensive and thorough investigation as in this instance." Id. at 55. The Legislature certainly knew how to enact a set of rigid evidentiary and procedural rules governing serious injury automobile cases, yet the text of Insurance Code§§ 5101 et seq. is devoid of such requirements. This omission did not represent an opportunity for the judiciary to usurp the Legislature's power and formulate such requirements. Faithful adherence to the core principles articulated in Montgomery compels reversal herein. Licari v. Elliott, 57 N.Y.2d 230 (1982) further undermines the Alvarez decision. Licari instructs in pertinent part that a court is empowered to determine whether a plaintiff has satisfied his or her prima facie burden under the No-Fault Law as a threshold matter. Id. at 237. However, nothing in Licari even remotely suggests that a court is authorized to overstep its proper role as a "gatekeeper" and re-write the rules of evidence and procedure for an entire category of cases. Taken together, neither Licari nor Montgomery authorizes a court to deny a seriously injured plaintiff his constitutional right to jury trial and impose rigid evidentiary and procedural requirements that were never codified by the Legislature. The Alvarez majority simply ignored this fundamental principle of jurisprudence. Consequently, Montgomery required the Alvarez majority (as well as the numerous additional courts that have similarly exceeded the scope of their constitutional authority) to adhere to the plain meaning rule of statutory interpretation. Because the plain language of Insurance Code Section§ 5102(d) is devoid of the rigid evidentiary and procedural rules adopted the Alvarez majority, the decision must be reversed. In Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y. 2d 577 [1998], this Court explained the fundamental rule governing statutory interpretation: [a]s the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. As we have stated, in construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add or take away from that meaning. Id. at 583. See also, Bates v. United States, 522 U.S. 23, 30 (1997) ("We ordinarily resist reading words or elements into a statute that do not appear on its face."); Excellus Health Plan, Inc. v. Serio, 2 N.Y.3d 166, 171-172 (2004) (unambiguous language of the statutory text alone is the best evidence of Legislative intent); People v. Finnegan, 85 N.Y. 2d 53, 58 (1995)("equally settled is the principle that courts are not to legislate under the guise of interpretation"). NYSTLA recognizes that a court possesses authority under certain limited and narrowly tailored circumstances to exercise its "gap-filling" role in the context of statutory interpretation. For example, it might be entirely appropriate to judicially impose a requirement that is consistent with or implied from the actual text of a statute. In re Coates, 9 N.Y. 2d 242, 253 (1961); see also Matter of Jerry v. Board of Education, 35 N.Y. 2d 534, 542 fn. 2 (1974) ("[t]o the extent that it may be suggested that on occasion our court has read additional terms into a statute, it has done so to supply a constitutional requirement and then to confer a right, usually procedural. In the present instance we all agree that the issues raised do not rise to constitutional dimension, and in any event the invitation here is to constrict the rights of individuals rather than to enlarge them."). By stark contrast, the Alvarez majority re-wrote Section 5102(d) and imposed requirements that restricted the constitutional right of seriously injured automobile accident victims to proceed to jury trial. In so doing, the majority violated the well-established principle of New York jurisprudence that a statute in derogation of the common law must be strictly construed. Doremus v. Lynbrook, 18 N.Y.2d 362 (1966). This court's holdings Perl v Maher, 18 N.Y. 3d 208 (2011), Tyson v Nazarian, 20 N.Y. 3d 967 (2012), and Ramkumar v Grand Style Transportation Enterprises, Inc., 22 N.Y. 3d 905 (2013), reaffirmed these principles. The decisions of the motion court and the Appellate Division in Alvarez threaten to undermine these principles by once again imposing rigid additions to the No Fault statute which effectively preclude anyone with degenerative changes from receiving compensation for needless harm inflicted upon them by careless drivers. In fact, the decisions of the motion court and the Appellate Division in Alvarez violate the this court's implicit holding in Tyson, supra, which by reversing the dismissal and directing a trial, disavowed the rigid rule that a prior injury or degenerative condition precludes recovery under Insurance Law § 5102. B. Courts Must Be Compelled To Strictly Follow The Doctrine Of Issue Finding Not Issue Determination on Summary Judgment Motions. In Toure, this Court explained that the No-Fault Law was intended to eliminate claims that were unable to satisfy the threshold standard. Toure v. A vis Rent A Car Systems, Inc., 98 N.Y. 2d 345, 350 (2002). The threshold standard may be satisfied in one of two circumstances. First, "an expert's designation of a numeric percentage of a plaintiffs loss of range of motion can be used to substantiate a claim of serious injury." Second, "an expert's qualitative assessment of a plaintiffs condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose, and use of the affected body organ, member, function or system." Id. at 350-351. Toure specifically rejected the application of a rigid and inflexible rule that would severely limit the presentation of expert medical evidence deemed legally sufficient to defeat a threshold motion. As the Alvarez dissent correctly noted, "However, in opposition, plaintiff raised a triable issue of fact through her orthopedic surgeon's opinion that plaintiffs shoulder, knee and spine conditions were caused by the accident, and not by degeneration (see Perl v. Meher. 18 N.Y.3d 208, 218-19, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] )." Id. at 1045. This is wholly consistent with the holding in Perl. Defendants in Perl did indeed present evidence, in the form of a sworn radiologist's report based on an MRI, that Perl's injuries were "degenerative in etiology and longstanding in nature, preexisting the accident." However, plaintiffs' contrary evidence, while hardly powerful, was sufficient to raise an issue of fact. They submitted another radiologist's affidavit, saying that, while some findings from the MRI "are consistent with degenerative disease," a single MRI cannot rule out the possibility that "the patient's soft tissue findings are ... a result of a specific trauma." That question, this radiologist said, can best be judged "by the patient's treating physician in conjunction with exam, history and any previous tests." Perl v. Meher, 18 N.Y.3d 208, 218-19 (2011). The same observations can be made to the instant case, and, in light of the sworn statement of the treating physician that the injury was the result of trauma and not degeneration the same result should apply. The dissent' s analysis in Alvarez is fully consistent with the expansive body of law, including this Court's decision in Matott v. Ward, 48 N.Y.2d 455 (1979), refusing to require physicians to employ a set of "magic words" to express their expert medical opinion. Nevertheless, the Appellate Departments have repeatedly disregarded this principle and continue to invent evidentiary and procedural rules governing serious injury automobile cases that cannot be supported by case law. Unless this Court reverses the Alvarez majority, the constitutional right to jury trial for seriously injured automobile accident victim in New York is placed in the hands of doctors, who are not experts in the art of defeating threshold motions. Let doctors practice medicine without courts determining the medical requirements necessary for a treating physician to render a valid medical opinion sufficient to defeat threshold motions in automobile accident cases. Treating physicians are not "litigation consultants" and should not be held to a litigation standard, but a medical standard, in the examination and treatment of patients and in the determination of causation injuries. The determination of the credibility of conflicting physicians opinions, absent a Frye hearing regarding reliability, " .. .is properly reserved for the finder of fact ... " Perl, supra, 215. The dissent firmly grasped this point when it reasoned that "In light of the evidence presenting issues of fact inappropriate for summary adjudication, I would deny defendants' motion for summary judgment." Alvarez, supra, at 1046. Any attempt by the lower courts to continue the pattern of circumventing Toure must be summarily rejected. CONCLUSION This Court should preclude further attempts by the Appellate Departments to usurp the power of the Legislature, re-write Insurance Code§ 5102(d) and impose unequal burdens upon parties injured in motor vehicle crashes. As was evident in the early 1970's when the predecessor to the No-Fault Law was first discussed, proper consideration of this issue represents an important matter of public policy, requiring balancing the interests of competing "stakeholders." The Legislature, unlike the judicial branch, is best suited to address these types of public policy issues. Campaign for Fiscal Equity, Inc. v. State of New York, 29 A.D. 3d 175, 185 (2006). Furthermore, unless and until the Legislature decides to enact a comprehensive set of evidentiary and procedural rules governing serious injury automobile cases, this Court must clearly reject any further attempts to ignore Toure. That decision did not represent an invitation for the Appellate Departments to impose their own requirements on seriously injured plaintiffs seeking to preserve their constitutional right to jury trial in automobile accident cases. Dated: New York, New York December 6, 2014 · e Esq., President New York State Trial Lawyers Association 132 Nassau Street, 2nd Floor New York, New York 10038 Phone: (212) 349-5890